598 N.E.2d 883 | Ohio Ct. App. | 1991
This case comes on appeal from a judgment of the Ottawa County Court of Common Pleas wherein summary judgment was granted in favor of defendant-appellee, John M. Domo. Plaintiffs-appellants are Catawba West, Inc.; Midland Title Agency, Inc., Trustee; Marina Operators, Inc.; Fremont B-K Properties, Inc.; Catawba-Cleveland Development Corp.; James V. Stouffer, Jr., Trustee for James V. Stouffer Family Trust; Catawba Island Club Corporation, Trustee; and Boulder Bluff Corp. Midland Title Agency, Inc. is the record title holder of certain parcels of real estate located in Ottawa County, Ohio. The remaining plaintiffs-appellants are the equitable and beneficial owners of those properties by means of title holding trust agreements between each of said plaintiffs-appellants and Midland Title Agency, Inc.
On November 14, 1988, appellants filed a complaint in which they asked the trial court to quiet title on the subject properties. Appellants alleged that *82
affidavits filed by appellee pursuant to R.C.
After engaging in discovery, each side filed a motion for summary judgment. On September 4, 1990, the trial court filed an opinion and judgment entry in which it granted appellee's motion for summary judgment and denied appellants' motion for summary judgment. Appellants' complaint was dismissed with prejudice.
Appellants filed a timely notice of appeal and assert the following assignments of error:
"Assignment of Error No. 1: The trial court erred in granting defendant's motion for summary judgment.
"Assignment of Error No. 2: The trial court erred in denying plaintiffs' motion for summary judgment on the complaint, and in dismissing plaintiffs' complaint with prejudice."
Briefly, the dispositive facts of this case are as follows.
Appellee obtained a judgment, in the amount of $1,656,149 against James V. Stouffer, Jr. for breach of a stock agreement. See Domo v. Stouffer (1989),
On October 3 and October 6, 1988, appellee filed affidavits, pursuant to R.C.
Appellants' assignments of error are interrelated and shall be considered together.
The sole issue before the court below was whether theaffidavits filed pursuant to R.C.
We agree with the trial court's judgment and hereby affirm and adopt the well-reasoned opinion of the Honorable Robert V. Franklin as to the assignments of error raised by appellants in their brief. See Appendix A. We further note, however, that an affidavit filed under R.C.
For these reasons, appellants' first and second assignments of error are found not well taken.
On consideration whereof, this court finds that substantial justice was done the party complaining, and the judgment of the Ottawa County Court of Common Pleas is affirmed.
Judgment affirmed.
HANDWORK, P.J., ABOOD and MELVIN L. RESNICK, JJ., concur. *84
This cause is before the court upon the plaintiffs' and defendant John M. Domo's cross-motions for summary judgment. Upon consideration of the pleadings, the competent evidence filed by the parties and the parties' briefs, the court grants defendant John M. Domo's motion for summary judgment as to the plaintiffs' complaint, and denies the plaintiffs' motion for summary judgment.
On November 14, 1988, the plaintiffs filed this action against Domo alleging, inter alia, that Domo's affidavits do not comply with the requirements of R.C.
"(A) An affidavit stating facts relating to the matters set forth under division (B) of this section that may affect the title to real estate in this state, made by any person having knowledge of the facts or competent to testify concerning them in open court, may be recorded in the office of the county recorder in the county in which the real estate is situated. When so recorded, such affidavit, or a certified copy thereof, shall be evidence of the facts therein stated, insofar as such facts affect title to real estate.
"(B) The affidavits provided for under this section may relate to the following matters:
"* * *
"(3) The happening of any condition or event that may create or terminate an estate or interest;
"* * *
"(C) The county recorder for the county where such affidavit is offered for record shall receive and cause the affidavit to be recorded as deeds are recorded, and collect the same fees for recording such affidavit as for recording deeds.
"(D) Every affidavit provided for under this section shall include a description of the land, title to which may be affected by facts stated in such affidavit, or a reference to an instrument of record containing such description, and shall state the name of the person appearing by the record to be the owner of such land at the time of the recording of the affidavit. The recorder shall index the affidavit in the name of such record owner."
To comply with the requirements of R.C.
The affidavit that Domo filed with the Ottawa County Recorder on October 3, 1988, provides:
"BEFORE ME, a Notary Public, in and for said county and state personally appeared John M. Domo, the Affiant who, being first duly sworn deposes and says that:
"1. He has knowledge of the facts contained herein or is competent to testify concerning them in open court. *86
"2. The record owner of the land whose title to which may be affected by the facts stated herein, at the time of the recording of the herein Affidavit is: MIDLAND TITLE AGENCY, INC., TRUSTEE.
"3. On August 22, 1988 he recovered a judgment against JAMES V. STOUFFER, JR. in the Court of Common Pleas of Ottawa County, Ohio, in the sum of $1,656,149.00 plus interest at the rate of 10% per annum from January 30, 1987 and costs, which judgment is in full force and effect and wholly unsatisfied.
"4. Pending in the Court of Common Pleas of Ottawa County is his Complaint (Creditor's Bill) for Equitable Relief (Case No. 24645) by which he has secured a lien upon all assets, including equitable, legal and other interests of CATAWBA WEST, INC., for the satisfaction of said judgment.
"5. CATAWBA WEST, INC. and/or JAMES V. STOUFFER, JR. have equitable or beneficial interests in the ownership of the land, described in the deeds recorded in the Ottawa County Deed Records set forth below, which are subject to Affiant's judgment as an equitable lien:
"(a) Volume 318, Page 294
"(b) Volume 321, Page 493
"(c) Volume 316, Page 314
"(d) Volume 316, Page 317
"(e) Volume 296, Page 809
"(f) Volume 296, Page 811
"(g) Volume 296, Page 813
"(h) Volume 302, Page 643
"(i) Volume 314, Page 215
"(j) Volume 314, Page 217
"(k) Volume 314, Page 222
"(l) Volume 314, Page 224
"(m) Volume 314, Page 226
"(n) Volume 314, Page 228
"(o) Volume 314, Page 230
"(p) Volume 315, Page 665
"(q) Volume 315, Page 723
"(r) Volume 316, Page 520
"(s) Volume 316, Page 520
"(t) Volume 316, Page 617 *87
"(u) Volume 316, Page 879
"(v) Volume 316, Page 881
"(w) Volume 316, Page 884
"(x) Volume 317, Page 483
"(y) Volume 317, Page 529
"(z) Volume 317, Page 535
"(aa) Volume 330, Page 722"
The affidavit that Domo filed on October 6, 1988, is identical to this one, except that it refers to land described in Volume 318, page 282 of the Ottawa County Deed Records.
Specifically, the plaintiffs argue that these affidavits do not state facts relating to a matter set forth in R.C.
Under R.C.
Furthermore, these affidavits state that (1) they are made by a person having knowledge of the facts or competent to testify concerning them in open court (R.C.
By filing his R.C.
The plaintiffs argue that Domo's affidavits are not authorized by R.C.